109 Kan. 674 | Kan. | 1921
The opinion of the court was delivered by
L. P. Jacobs sued W. C. Greening and the Exchange State Bank of Parsons charging them in a first cause of action with having' wrongfully garnished funds of the plaintiff and in a second with having wrongfully procured the issuance of a restraining order against him. A demurrer to the petition was sustained as to both causes of action and he appeals.
The petition alleged that the defendants were actuated by malice in procuring the garnishment and the restraining order, and that no probable cause therefor existed. The action was begun more than a year after the matters complained of had taken place, and, regarded as one for malicious prosecution, was therefore barred by the statute of limitation. (Gen. Stat. 1915, § 6907, subdiv. 4.) The plaintiff, however, urged that the allegations of malice and want of probable cause may be disregarded and the petition held sufficient to authorize a recovery for actual damages by virtue of its alleging that the garnishment and restraining order were wrongfully procured, irrespective of the motive.
So far, therefore, as the first cause of action is concerned the one-year statute of limitation did not apply, and for that reason the order sustaining the demurrer was to that extent erroneous.
As to the second cause of action the judgment is affirmed; as to the first it is reversed, the cause being remanded for further proceedings.